dismissed EB-2 NIW Case: Logistics And Transportation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 25, 2023 In Re: 26580086 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks classification as a member of the professions holding an 
advanced degree. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b )(2). 
The Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this 
EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and 
Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and thus 
of a labor certification, when it is in the national interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish either the Petitioner 's eligibility for EB-2 classification or that a waiver of the classification 's 
job offer requirement is in the national interest. The matter is now before us on appeal. 8 C.F.R. 
§ 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 immigrant classification , as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, the petitioner must then establish eligibility for a 
discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of 
the Act. While neither statute nor the pertinent regulations define the term "national interest," Matter 
of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver pet1t10ns. Dhanasar states that USCIS may, as a matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
The Director found that the Petitioner did not establish that he is an advanced degree 
professional, and 
as such did not establish that he qualifies for the EB-2 classification. The Director further found that 
the Petitioner did not establish eligibility under any of the three required prongs of the Dhanasar 
analytical framework, and therefore, did not establish that a waiver of the classification's job offer 
requirement is in the national interest. 
A. Qualification for EB-2 Classification 
As discussed above, to qualify for the underlying EB-2 classification, an individual must establish 
eligibility as either a member of the professions holding an advanced degree, or as an individual of 
exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. In the 
Petitioner's initial filing he claimed that he meets some of the regulatory criteria used to establish 
exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii). However, in response to the Director's request for 
evidence (RFE), which requested among other items additional evidence to establish exceptional 
ability, the Petitioner did not further assert that he qualifies as an individual of exceptional ability nor 
submit additional evidence to support this claim. The Petitioner also does not assert that he qualifies 
as an individual of exceptional ability on appeal. Accordingly, we consider the claim that the 
Petitioner qualifies as an individual of exceptional ability to be waived. See, e.g., Matter ofM-A-S-, 
24 I&N Dec. 762, 767 n.2 (BIA 2009). 
In response to the Director's RFE and on appeal, the Petitioner instead asserts only that he qualifies 
as a member of the professions holding an advanced degree. To qualify as an advanced degree 
professional, an individual must either possess an academic or professional degree above that of a 
bachelor's degree or possess at least five years of progressive experience in the specialty following 
their receipt of a bachelor's degree or the foreign equivalent degree. 8 C.F.R. § 204.5(k)(2). 
The record contains evidence that the Petitioner obtained a "diploma" in jurisprudence from the 
Academy of~---------~ in Kazakhstan in 1999, evidence of his years of work 
experience as a police investigator with the~---------~ of the Republic of Kazakhstan 
from 2001 to 2018, and an evaluation of academics and work experience. The evaluation claims that 
the Petitioner's degree is equivalent to a United States bachelor's degree and further that the Petitioner 
has obtained the equivalent of a master's degree in law based upon his receipt of this degree followed 
by more than five years of progressive experience in law. The Petitioner states that he proposes to 
establish a cargo logistics and transportation business as his specific proposed endeavor. 
1 See also Poursina v. USC1S. 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
The Director found that the Petitioner's claimed work experience in law was unrelated to cargo 
logistics and transportation. Therefore, the Director stated, the Petitioner did not establish that his 
post-baccalaureate experience is "in the specialty" of the proposed endeavor, and as such he did not 
establish that he an advanced degree professional as defined at 8 C.F.R. § 204.5(k)(2). 
In a brief submitted on appeal, counsel for the Petitioner asserts that the Petitioner's advanced degree 
qualifications are relevant to his proposed endeavor, stating that his degree has supplied him with "the 
skills and knowledge that will be instrumental in implementing the proposed endeavor" because he 
will be "developing his business, employing knowledge of contracts, sales, and other business related 
subjects." Counsel also asserts on appeal that in some of his prior roles in Kazakhstan, the Petitioner 
was "primarily responsible for traffic-related crimes" and, as a result, gained an understanding of road 
safety compliance, vehicle operation, and the transportation and logistics industry. 
Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533,534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980)). 
Counsel's statements must be substantiated in the record with independent evidence. The only 
evidence in the record supporting this claim appears to be the Petitioner's personal statement, in which 
he claims that in his prior roles he was responsible for investigating traffic-related crimes, and that 
through this he "began coming into contact with the logistics industry." However, the Petitioner's 
work experience letter from thel Iof the Republic of Kazakhstan does not 
mention a specialization in "traffic-related crimes," "road safety compliance," or other work related 
to the transportation and logistics industry in describing the Petitioner's work experience with the 
organization. Although the business plan and the expert opinion letter that the Petitioner submitted 
summarize the Petitioner's work experience as involving "traffic-related crimes," these documents do 
not cite to a source for those summaries and appear to be simply repeating the Petitioner's claim. As 
such, we do not consider them to be additional, independent evidence of the Petitioner's experience. 
The record contains no other evidence to support the claim that the Petitioner's experience relates to 
traffic-related crimes or the logistics industry, and the Petitioner has not established this fact with his 
unsupported testimonial evidence alone. Moreover, even if the Petitioner has experience investigating 
and prosecuting traffic-related crimes, he has not sufficiently established that his experience in that 
specialty relates to his proposed endeavor of operating a logistics and transportation business. 
Therefore, we conclude that the Petitioner has not established that his work experience is "in the 
specialty" of the proposed endeavor, and as a result he has not established that he qualifies as an 
advanced degree professional as defined at 8 C.F.R. § 204.5(k)(2). 2 
Additionally, as stated above, the Petitioner has not established that he qualifies for EB-2 classification 
as an individual of exceptional ability. Having determined that the Petitioner does not qualify as either 
an advanced degree professional or as an individual of exceptional ability, we conclude that the 
Petitioner has not demonstrated his eligibility for the underlying EB-2 classification. 
2 Although the Director appeared to conclude that the Petitioner established that his foreign degree is equivalent to a U.S. 
bachelor's degree, because our conclusion that the Petitioner's experience is not "in the specialty" of the proposed endeavor 
is sufficient to determine the outcome of the appeal, we need not address whether the Petitioner has established that he 
possesses the equivalent of a U.S. bachelor's degree. 
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B. Eligibility for a National Interest Waiver 
The next issue is whether the Petitioner has established that a waiver of the classification's job offer 
requirement is in the national interest. Because the Petitioner has not established that he meets the 
threshold requirement of eligibility for the underlying EB-2 classification, we need not address whether 
he is eligible for, and merits as a matter of discretion, a waiver of that classification's job offer 
requirement. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required 
to make findings on issues the decision of which is unnecessary to the results they reach"); see also 
Matter ofL-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternate issues on appeal 
where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 
8 C.F.R. § 204.5(k)(2), (k)(3). Because the Petitioner has not established eligibility for the underlying 
EB-2 immigrant classification, we conclude that the Petitioner has not established eligibility for a 
national interest waiver. We reserve our opinion regarding whether the record satisfies any of the 
three prongs of the Dhanasar analytical framework. 
ORDER: The appeal is dismissed. 
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